TMI Blog2017 (9) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2005 has attained finality. So, the question of examining the claim for refund on merits does not arise now, once again. The only area of scrutiny is liable to be confined as to whether the actual refund to the assessee would amount to unjust enrichment. This question is not examined from the point of finding out as to whether duty burden is already passed on to the others or not. Surmises and conjectures are drawn by setting out that though Excise Duty is not shown separately in the bills or invoices, but, in the absence of supporting documents that the burden of duty has not been passed on to the others, the claim for refund is rejected. If the burden of Excise Duty is passed on to the others, it gets reflected in the Bills and invoices. That is a positive evidence. That was produced to show that no such burden is passed off. It is, thus, clear that far from finding out as to whether or not the duty burden has been passed on to the others, the adjudicating and appellate authority have gone about looking for negative evidence. Clearly, the very approach is wrong. Appeal dismissed - decided against Revenue. - C.M.A. Nos. 3128 of 2010 & 765 of 2011 - - - Dated:- 11-8-2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed their claim and directed the said items to be classified under TI.30-D and duty be paid accordingly. Aggrieved by this order, the assessee preferred W.P.No.7505 of 1982. This Court stayed the operation of the above order vide its order, dated 20.09.1982, and directed the petitioner to pay the duty 'under protest'. Complying with the order, the assessee started paying duty under protest. This Court finally dismissed W.P.No.7505 of 1982 on the ground that the petitioner had not exhausted the alternative remedies available under the Act with regard to the classification matter. In view of this, the assessee preferred an appeal with Collector (Appeals), Madras, against the OIO, dated 13.08.1982. The Collector of Central Excise (Appeals) vide OIA Nos.32 to 42/90 (CBE), dated 06.03.1990, upheld the order of the lower authority. In the meantime, the Range Officer issued a Show Cause Notice, dated 04.10.1990, proposing to demand duty of ₹ 42,92,497/- on 22,535 nos. of stators and rotors manufactured and used captively in the manufacture of mono bloc pump sets during the period from 01.11.1981 to 28.02.1986 and to vacate 'the protest on payment of duty' and to adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards payment of duty by adjustment in RG 23-proforma credit account, the credit had been utilized for payment of duty for stator and rotors, which they claimed, were exempted- this plea could not be accepted since proforma credit is available only when the final product is dutiable. Further, no cash refund could be allowed for duty debited under proforma credit scheme. (v) The orders in appeal passed by the Collector (Appeals) and CEGAT were on the classification matter and not against the order demanding duty /vacation of protest, basing on which the present refund claim is preferred. Further, the order of Assistant Commissioner of Central Excise, dated 23.05.1994, had not been challenged by the assessee and hence the claim for refund, made on 16.07.2004, is hit by limitation. 8. Aggrieved by the above order, the assessee preferred an appeal with the Commissioner (Appeals), Coimbatore, who decided the issue vide OIA No.196/2005-CE, dated 18.07.2005, with the following observations/findings : (i) The payment of duty for the period from 1.11.1981 to 31.10.1983 had been paid in lumpsums in instalments and that too subsequent to the clearances of the impugned goods and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be said to constitute an order for provisional assessment under Rule 9(B). Rule 9(B) envisages a specific written order from the proper officer directing provisional assessment. (iii) The assessment cannot be treated as provisional solely on the premise that endorsements have been made on the RT12 returns to the effect that the assessments are provisional (iv) It was observed from the Trading accounts that the excise duty payments have been charged as expenditure before arriving at the gross profit. The excise duties paid have been loaded on indirectly to the cost of the products. 13. C.M.A.No.3128 of 2010 has been admitted on the following substantial questions of law : 1.In the absence of order under Rule 9 (B), whether the Tribunal was right in holding that the assessment during the period in dispute is required to be treated as provisional when the law of the land as set out by the Hon'ble Supreme Court in the case of Metal Forging (2002 (146) ELT 241 states that to establish that the clearances were made on a provisional basis, there should be first of all an order under Rule 9B of the Rules, and then material to show that the goods were cleared on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits of the claim of refund, which is wholly impermissible. What is ordered to be examined by the Commissioner of Appeals on 18.07.2005 is, whether the claim for refund is hit by the bar or ''unjust enrichment''. If the adjudicating authority is not satisfied by the certificate of the Chartered Accountant that the duty burden has not been passed on to the others, then, he is required to provide an opportunity to establish that the duty has not been passed on to the others, in which event, any claim for refund would not amount to unjust enrichment. 18. An appeal was preferred against the order of rejection of refund, dated 27.02.2008, to the Commissioner (Appeals) and the Commissioner (Appeals) rejected the claim for refund, by his order, dated 13.06.2008. In our opinion, instead of trying to examine the issue from the perspective of, whether the refund would amount to unjust enrichment, the adjudicating authority and the appellate authority have concentrated on the validity of the claim for refund. 19. There is no difficulty for one to appreciate, that the bar contained under Section 11B of the Act would get attracted, so also the ratio laid down by the Supre ..... 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